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Hopwood A Difference of Opinions in Texas

Hopwood A Difference of Opinions in Texas

Despite being at odds with his predecessor, Texas’ attorney general is urging the state’s higher education institutions to follow previous guidelines

AUSTIN, Texas — The state’s flagship public universities will not reinstate race as a criterion in scholarship, financial aid or recruitment decisions despite an about-face on affirmative action by the state, college officials say.
Texas Attorney General John Cornyn earlier this month rescinded a 2.5-year-old opinion by his predecessor that ended affirmative action at all Texas public colleges and universities.
But Cornyn, a Republican, cautioned state university officials not to revert to such policies until the matter is settled once and for all in court. Re-instituting the policies could invite lawsuits, he warns.
The University of Texas at Austin will continue to use race-neutral scholarship and financial aid policies, says Dr. Patricia Ohlendorf, vice president for administration and legal affairs at the 50,000-student university.
That sentiment was echoed by officials at Texas A&M University.
“We’re still studying the opinion. But we’ve seen nothing so far to convince us to change our policies,” says Kathy Harris, director of communications for Texas A&M in College Station.
The previous opinion by former Texas Attorney General Dan Morales, a Democrat, jeopardized minority access to the state’s flagship public universities in a state in which minorities are expected to be the majority of residents in the next decade.
State higher education leaders complain that it also resulted in a “brain drain” of the brightest minority students to out-of-state universities that still can offer race-based scholarships.
The state’s biggest universities still are struggling to recruit and retain minority students since the ban on affirmative action, based on a court decision on reverse discrimination at the University of Texas.
Following the 1997 opinion, lawmakers and university administrators rushed to find new methods to increase minority enrollment at Texas A&M and the University of Texas, selective public universities that were hardest hit by the affirmative action ban. Attendance at the universities, with their influential alumni groups, often is a path to powerful public and private sector positions.
A state senator urged Cornyn, who was elected in November, to review Morales’ opinion. And even though it has no immediate effect, university officials praised Cornyn’s opinion.
“We deeply appreciate the attorney general’s efforts on behalf of the University of Texas and all of Texas higher education,” Dr. William Cunningham, chancellor of the University of Texas System told reporters at a news conference here earlier this month.
Cornyn’s office has joined the University of Texas in an appeal of the so-called Hopwood case. The 1992 lawsuit is named for Cheryl Hopwood, one of four White students who alleged they were denied admission to the university’s law school because of their race.
The 5th U.S. Circuit Court of Appeals ruled in the students’ favor. Some constitutional and civil rights lawyers have argued that the Hopwood ruling applies only to higher education admissions.
But Morales’ interpretation of the ruling was to ban consideration of race in admissions, scholarships, financial aid and recruitment decisions — a decision that since has been criticized as too broad. Cornyn agreed.
“Absent clear guidance from the [U.S. Supreme Court], we think it inadvisable to reach broad conclusions on what may or may not be permitted under Hopwood on matters other than admissions,” Cornyn said in a written statement. “Because [Morales’] opinion on the subject … does just that, we withdraw it.”
The opinion also states: “Only the United States Supreme Court can resolve these sensitive issues with any degree of certainty.”
Lawyers for the University of Texas and the state have argued before the 5th Circuit that the Hopwood decision runs counter to the Supreme Court’s 1978 Bakke decision, which allows affirmative action programs to correct past racial discrimination. Lawyers also contend that Texas should not be held to a court standard different from that of other states.
The University of Texas and Texas A&M have used alternatives to affirmative action —including automatic admissions for students who graduate in the top 10 percent of their high school class — to skirt the ruling and boost minority enrollment in undergraduate programs.
“Since Hopwood, our undergraduate numbers are above pre-Hopwood days. There’s a scholarship program, the University Longhorn Opportunity Scholarship, and we’re seeing the effects of that,” says Ohlendorf, adding that the university has admissions offices in Dallas and Houston. Both cities have large minority populations.
The number of Black freshmen this fall at the university is 286, which exceeds the 266 enrolled in fall 1996, the year before the Hopwood ruling took effect, admissions officials say. Total enrollment at the University of Texas is 49,034 — making it the largest university in the United States.
But minority enrollment in graduate and professional schools at the university has not increased over pre-Hopwood levels, Ohlendorf acknowledged in an interview with Black Issues In Higher Education.
Texas A&M officials didn’t want to release enrollment figures until final numbers were available for the current semester.
“Cornyn’s opinion is a vindication of what we’ve always said — that Hopwood applies only to admissions at the law school,” says Jemima Pierre, a member of a student group at the University of Texas that pressured administrators to maintain affirmative action programs after the court ruling.
Pierre, a graduate student here, contends that University of Texas administrators hid behind Morales’ opinion to avoid making a commitment to diversity. “They dismantled affirmative action programs before his opinion,” she says. “That shows their lack of commitment to diversity.”
Morales, now in private practice here, told Black Issues In Higher Education that it is Cornyn’s “prerogative to rescind any opinion of a prior administration. I will say I disagree on legal … and on policy grounds.
“Case precedent and an analysis of relevant U.S. Supreme Court precedent indicate that it is very likely that the court will use the same standards for financial aid and scholarships as was used in Hopwood regarding admissions,” Morales says.
He contends colleges and universities still can achieve diversity using race-neutral criteria. Students should receive support based on “financial need, family history, background and other factors,” he says, insisting that he strongly supports “the objective of diversity and equal opportunity.”
Wilhemina Delco, the former chair of the higher education committee of the Texas House of Representatives, says the Hopwood ruling needs review and reversal. But she says an equally pressing issue for the University of Texas is how to graduate minority students once they’ve been admitted.
“It remains to be seen what they will do about retaining African American students,” says Delco, who served on an ad hoc state committee that studied diversity in higher education.
First-year continuation rates for African American students at the university are comparable to those of Whites and Hispanics, 1998 figures show. But the graduation rate for African Americans severely lags behind that of Whites and Hispanics, according to the Office of Institutional Studies.
A study of entering freshmen in fall 1992 shows that 68.4 percent of Whites and 59.2 percent of Hispanics, compared with 53.3 percent of African Americans, graduated within six years.
“We [African Americans] pay our tax dollars, and we need to get more in return than someone who can do the Hook ‘Em Horns sign,” Delco says.     

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